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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: British impeachments

A lesson from history: Conviction is not the only measure of a successful impeachment

26 Wednesday Jun 2019

Posted by impeachableoffenses in Uncategorized

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Andrew Johnson, Bill Clinton, British impeachments, Charles II, Duke of Buckingham, Earl of Danby, Earl of Strafford, Earl of Suffolk, Edwin Stanton, George Mason, James Madison, Jim Hines, nancy pelosi, Parliament, Peter Oliver, Reconstruction, Richard Nixon, Samuel Chase, Thomas Hutchinson, Thomas Jefferson, Warren Hastings

On June 25, Prof. Bowman published the following piece in Slate under the title, “Nancy Pelosi is taking the wrong lesson from past failed impeachments.”

By Frank Bowman

On Monday, Rep. Jim Himes of Connecticut became the latest Democrat to come out in favor of a formal impeachment inquiry. While Himes’ position on the House Intelligence Committee makes him one of the most prominent names to call for impeachment, House Democratic leadership has remained adamantly opposed to initiating such proceedings. As Democrats continue to agonize over whether to commence a formal impeachment inquiry against Donald Trump, they are trapped between two realities.

On the one hand, if they start an inquiry, the facts already known would compel a vote to impeach. On the other hand, the Republicans in the Senate will not vote to convict, regardless of the facts.

If, therefore, impeachment cannot compel removal, and if, as Speaker of the House Nancy Pelosi believes, impeachment risks loss of the House by the Democrats and enhances the chance of Trump’s reelection, what would be the point of starting the process?

I am loath to second-guess the proven political judgment of Pelosi in resisting a formal impeachment inquiry, but that judgment should at least be informed by a fair reading of history.

And as I explain in my forthcoming book, the history of impeachments—English and American—teaches that conviction of the target officeholder is not the only measure of a successful impeachment. Indeed, impeachments that did not result in convictions often succeeded in attaining most, if not all, of the objectives of those who initiated them.

Impeachment was invented by the British Parliament in the 1300s as a tool to counteract the dictatorial tendencies of the monarchy. Parliament could not remove an unsatisfactory king short of bloody rebellion. But impeachment gave it a means to check abuses of royal power by removing—and sometimes imprisoning, impoverishing, banishing, or beheading—the officials who carried out objectionable royal policies. The American founders abandoned British impeachment’s sometimes grisly criminal penalties (in part to make impeachment more palatable) but retained the distinctive procedural features of parliamentary practice—the lower house of the legislature brings the impeachment charges, and the upper house tries them.

Through the roughly four centuries during which impeachment was in active use by Parliament, a great many officials were impeached by the House of Commons but never convicted by the House of Lords. Sometimes the House of Lords acquitted the defendant outright. More often, it simply failed to act, or the process was blocked when the monarch “prorogued” (dissolved) Parliament before a trial could be held. The Earl of Suffolk (1450), the Duke of Buckingham (1626), and the Earl of Danby (1678) were all impeached but never tried because the king prorogued Parliament. Nonetheless, for each of these men and the king he served, impeachment was a personal and political blow.

The King preemptively banished Suffolk to forestall parliamentary condemnation, but Suffolk was murdered by pirates in the English Channel. Buckingham retained the King’s favor despite impeachment, but impeachment aggravated his personal unpopularity and he was assassinated. Danby was driven from office and imprisoned during the impeachment wrangling and effectively banished from public life during the reign of Charles II. In each case, the policies these men promoted on behalf of their royal masters were also impeded.

In 1715, the Earl of Strafford was impeached for giving Queen Anne “pernicious advice” about the Treaty of Utrecht. He was never tried but fell from power. His impeachment—along with that of the Earl of Oxford and Viscount Bolingbroke—signaled a decisive repudiation of pro-Catholic foreign policy and extinguished any hope of restoration of a Catholic English monarchy.

In 1787, when the Framers were gathered in Philadelphia to draft the Constitution, Parliament had just commenced the impeachment of Warren Hastings, governor-general of Bengal. Hastings’ impeachment was specifically mentioned in the exchange between George Mason and James Madison that gave us the phrase “high crimes and misdemeanors.” The trial dragged on for seven years and ended in acquittal, but the proceeding both destroyed Hastings and markedly altered the way England viewed governance of its overseas territories.

On this side of the Atlantic, impeachment was sometimes used by American colonists to protest royal policies. For example, in 1774, the Massachusetts House of Representatives impeached Chief Judge Peter Oliver for the “high crime and misdemeanor” of accepting a salary paid by the British monarchy under an act of Parliament. This seems bizarre to us, but to the colonists, the effort to pay colonial judges from the royal exchequer was an attempt to wrest control of the judiciary away from local authorities and make American judges accountable only to the faraway king.

Oliver was never tried because Colonial Gov. Thomas Hutchinson dissolved the upper chamber of the Legislature to prevent a trial. Nonetheless, Oliver became the hated embodiment of the danger of judicial servility to the monarchy. Faced with his example, no other Massachusetts judge dared to accept the king’s salary.

And although Oliver’s impeachment produced no conviction, the case assumed such importance in American minds that it made its way into the list of grievances against the king laid out in the Declaration of Independence. The king, wrote Thomas Jefferson:

… has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

After the newly independent United States adopted impeachment as part of its Constitution, the House of Representatives impeached Supreme Court Justice Samuel Chase in 1804, largely for judicial intemperance and displaying partisan bias in the exercise of his judicial duties. The effort to remove him was said to be part of an attempt by President Thomas Jefferson to purge the federal bench of judges aligned with his political opponents, the Federalists. Chase’s acquittal is often cited as authority for the proposition that judges should not be impeached for their political leanings. But it had another effect, which was to admonish federal judges to stay out of partisan politics when on the bench, which they have for the most part done ever since.

Finally, the failed impeachment of President Andrew Johnson in 1868 is cited by some as both a misuse of the impeachment power and an example of the futility of impeaching a president in the House, but failing to convict him in the Senate. I disagree on both points.

Johnson plainly deserved to be impeached. He was wrong about the most important constitutional questions posed by the aftermath of the Civil War—whether to readmit the rebel states of the defeated Confederacy to full political participation in national government without thorough reform of their politics and social structure, and whether to confer on black people the rights of citizenship that the abolition of slavery necessarily implied. Johnson wanted a version of “Reconstruction” that restored the white supremacist oligarchy of the Old South to power locally and influence nationally. And he wanted to consign freedmen to a sort of permanent peonage.

The Republican-dominated Congress wanted thorough Southern reformation and far more rights for black Americans. Johnson opposed them at every turn, vetoing virtually every congressional reconstruction bill and opposing ratification of the 14th Amendment. His effort to, in effect, pretend that the Civil War never happened was the true ground on which Republicans sought his removal, even though the articles of impeachment focused on the technicality of his violating the Tenure of Office Act by firing Secretary of War Edwin Stanton.

Although Johnson escaped Senate conviction by one vote, the impeachment proceedings forced Johnson to make concessions to Congress on reconstruction. Impeachment also eviscerated his effort to secure election to the presidency in 1868. One can fairly debate whether, in the long run, the goal of meaningful Reconstruction was helped or hurt by Johnson’s impeachment. But in the short term, it made crystal clear that congressional Republicans, not the president or recalcitrant southerners, would define the postwar political order.

Against all these cases stands the supposed cautionary tale of Bill Clinton’s acquittal. It is unquestionably true that the rush to impeach Clinton over his reprehensible personal conduct and obfuscatory perjuries imposed a short-term political cost on Republicans. But the lesson of that sad episode is not that any failure to convict a president is necessarily a political disaster for his or her opponents. Rather, the lesson is that the public will punish a party that tries to remove a president on transparently trivial grounds.

To draw from Clinton’s travails the lesson that no impeachment inquiry should be attempted without a guarantee of success in the Senate is to insulate even the most egregious presidential wrongdoing from serious scrutiny, still less serious consequences, so long as he can coerce the loyalty of a craven majority of senators of his own party. To take that line not only abandons a primary constitutional defense against executive tyranny but concedes that a politically dispositive fraction of the American public is so tribalized as to be unpersuadable.

I don’t think that is the lesson of American history, at least so far. Richard Nixon resigned because congressional hearings, including a formal impeachment inquiry, convinced an initially resistant American public and their congressional representatives that he committed constitutionally consequential misdeeds. Democrat Bill Clinton was acquitted because his impeachment inquiry disclosed tawdry and dishonorable, but constitutionally inconsequential, misbehavior. In the next presidential election, Republican George W. Bush, though confronted with Clinton’s strong economic legacy, ran on restoring “honor and dignity” to the White House … and won.

Ultimately, it’s not political naïveté to believe that a voting majority of Americans can be educated to recognize the threat to constitutional governance President Donald Trump presents.

Moreover, while it is imperative that Trump be beaten, it is only slightly less important that he be beaten on proper grounds. Not merely by promising better health care, or a more rational and humane immigration system, or a moderately improved system of allocating the vast wealth generated by robust capitalism. The constitutional health of the country requires that he lose, in significant part, because a voting majority of the American people understands that, unless repudiated, Trump and Trumpism will destroy the Constitution. Democrats can’t do this if they don’t at least try to make the case, and history suggests that the risks of such an effort are lower than they seem to fear. 

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The Case for Impeachment of Donald Trump, Part 1 (The Forest & the Trees)

06 Thursday Dec 2018

Posted by impeachableoffenses in Uncategorized

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bill of particulars against Trump, British impeachments, Founders' impeachment, Goliath's sword, great offenses, High Crimes and Misdemeanors, impeachment of Trump

By Frank Bowman

As I noted last week, I’ve finally finished my book on impeachment, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, due out from Cambridge University Press in the spring.  The book begins with an in-depth examination of the history of impeachment in the United Kingdom and the United States from 1376 to the American founding through all the American impeachment cases to date, and concludes with five chapters focused particularly on issues of potential relevance to Mr. Trump.

To get the whole argument, you’ll have to buy the book. 🙂  However, over the next few weeks, I’m going to summarize the case for and against impeaching Mr. Trump given what is currently known.

The Big Picture

The paramount lesson I learned from my long journey through British and American constitutional history is that impeachment is, and was always intended to be, a means of protecting the Constitution in the broad sense, by which I mean not only the particular governmental arrangements and personal rights specified in the written document, but equally importantly, the distinctively American institutions and norms that have grown, flourished, and solidified around the written core.  Because the Founders recognized the impossibility of defining in advance the precise nature of the threats to constitutional order an uncertain national future might produce, they wrote and ratified a flexible standard for impeachable conduct and delegated the choice of how to apply it to Congress — the most democratic, politically accountable branch of the national government. The requirement of a 2/3 majority for conviction in the Senate makes impeachment politically difficult.  But the language of the impeachment clauses, the British and American practice so influential in shaping that language, and the precedents created by American impeachments since 1788 impose no absolute limits on the conduct for which Congress may impeach and convict a President.

The result is that — as a constitutional matter — we can impeach a president whenever we should, which is to say whenever removal of the president seems essential to protecting constitutional order.   If that is true, one might ask why even bother studying the history of impeachment, either before or after the composition of the Constitution. The answer is that the constitution’s impeachment language and the history surrounding it are essential aids in helping us think about what should be done for the good of the republic in any new case.

The key to framing a strong impeachment case against Donald Trump is recognizing the unique character of the threat he presents to constitutional order.  Every American impeachment case to date has centered on a discrete set of acts, or at least a pattern of conduct with an identifiable set of objectives or exemplifying particular disqualifying traits.  To take only the presidential examples: Andrew Johnson violated the Tenure of Office Act, and did so as part of a general pattern of usurping congressional authority to define the course of post-Civil War reconstruction.  Bill Clinton lied about adulterous sex and obstructed justice to conceal the sex and the lies. Richard Nixon’s offenses seem more various, but the charges against him nonetheless centered on three closely interrelated themes – first, his campaign organization committed crimes to gain electoral advantage and he orchestrated a cover-up of those crimes; second, he engaged in a larger pattern of abuse of power, including misuse of government agencies, for the purpose of helping his friends, hurting his perceived enemies, and gaining political advantage; and third, he unjustifiably resisted congressional power to investigate impeachable conduct.

By contrast, the list of Trump’s offenses against constitutional propriety and reasonable expectations of presidential behavior is dishearteningly diverse and includes conduct in virtually all the categories of conduct historically identified as “high Crimes and Misdemeanors.”  His potential offenses begin with obstruction of justice both narrowly and broadly defined, abusing (or at least thoughtlessly misusing) the pardon power, ceaseless prevarication in every forum, and using his office to enrich himself and his family while violating the emoluments clauses in the process.  They run on to include varying forms of electoral misconduct; culpable maladministration  of various kinds, most notably deconstruction of America’s trade, diplomatic, and security architecture; persistent attacks on the legitimacy of other branches of government and of the free press; regular abuse of the norms of civil discourse, and more.  I have identified nine separate categories of conduct that might figure in an impeachment case against Mr. Trump.

I will examine each of those categories in subsequent posts, but the present point is that Trump’s true offense, the thing that would justify his impeachment and removal, is not any one of these, but the totality of his multifaceted assault on the norms of American constitutional government.  The unifying feature of all his offenses, large and small, is self-aggrandizement.  His object is to draw as much power, money, and adulation to himself, and secondarily to his family, as he can.  His invariable method is to attack any person, institution, law, rule, custom, or norm that might impede him from whatever he happens to want at the moment.  His objective is government according to the will of the one. What he seeks, whether as some deep-laid plain or more likely because it is simply his nature, is autocracy.  And there is solid, venerable precedent for impeachment on that ground.

The most important, constitutionally formative, impeachments in British history were those in which Parliament brought down ministers who “endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government.”  This was the fundamental danger against which the Framers sought to guard when they incorporated the impeachment power into the American constitution.  Those opposing impeachment in particular cases are apt to emphasize language from the founding generation and others suggesting that the impeachment power should be reserved for “great occasions.”  The classic quotation in this vein is from Lord Chancellor Somer, who said in 1691 that “the power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.”  5 New Parl. Hist. 678 (1691).  While that may be so, by the same principle, impeachment is a power that reaches the greatest of occasions and ought to be used if the republic is not to fail.   We happy Americans have never before been confronted by a presidential personality which posed a real risk of degeneration into autocracy.  We are loath to recognize the danger or to act on it.

A consistent theme of this blog has been that Donald Trump presents such a danger and that serious-minded people should at least consider whether impeachment is the proper remedy for it.

Subsequent posts will consider the bill of particulars against President Trump.

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British Impeachments & the Age of Trump

29 Sunday Jul 2018

Posted by impeachableoffenses in Uncategorized

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British impeachments, impeachment for corruption, impeachment for incompetence, impeachment for threatening constitutional order, impeachment on foreign policy grounds, maladministration, Parliament, treason

By Frank Bowman

I’ve been pretty quiet on the blogging front for the the last month.  Travel and family have accounted for some of the silence, but mostly I’ve been working on my upcoming book on impeachment, due out from the University of Cambridge Press in 2019.

As I go, I’m developing some of the material into freestanding articles for publication in law journals. One that just went out is titled, “British Impeachments (1376-1787) & the Present American Constitutional Crisis.”  The abstract is reprinted below.  If you’re interested in exploring the topic, you can download the article from the Social Science Research Network (SSRN) for free by clicking on this link, and then pressing the “Download This Paper” button.  Enjoy.  Feedback welcome.

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language.

Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency.

The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment.

Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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